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Chamber and committees

Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 18 August 2025
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Displaying 1311 contributions

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Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

Good morning to you, minister, and to your officials. I wonder whether I can just briefly follow up that point. I think that, in the evidence that we took, the preferred model鈥攁lthough it was not preferred by everybody鈥攚as that the definition would simply refer back to the 2000 act. Can you give us a wee bit more information on what would be the advantages and disadvantages, from a Scottish Government perspective, of using that particular model?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

I move to section 61 of the bill, which gives a power to the beneficiaries, and others, to apply to the court to alter the trust purposes of a family trust where there is a material change in circumstances. Section 61 sets out the default position that that power cannot be used for 25 years. Most, though not all, of those who expressed a view to the committee thought that the 25-year period was too long. How did you arrive at the period of 25 years and, having heard the evidence, are you persuaded that that is still the right period?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

STEP Scotland was also critical of a further requirement to be met before the court power could be used, which is that the person who set up the trust must now be dead. Does the Scottish Government still think that that requirement should be in section 61? What was the rationale for that provision?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

That does not cover all situations, however. For example, I could have a trust as a person with a physical disability. If the person who is the trustee loses capacity for whatever reason and I lose capacity at the same time, how will the trust run if nobody else has been appointed? How will my payments be made?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

Are you not concerned that people will be put off becoming trustees, if they do not understand how the role works, if they always have to consult lawyers and if there is no kind of style document? A lot of trusts are already struggling to find people. Are you not concerned that that will put more people off? What analysis have you done of that situation?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

I appreciate that the bill was drafted by the Scottish Law Commission, however it is now a Government bill, so the Government鈥檚 view must be that that is the right thing to do.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

We will move on, if that is okay, minister.

Some stakeholders have queried how the Office of the Scottish Charity Regulator鈥檚 powers under the charities legislation in relation to charitable trusts interact with the bill鈥檚 provisions that affect charitable trusts. For example, how does OSCR鈥檚 power to appoint interim trustees interact with the court鈥檚 power to appoint trustees under section 1 of the bill? If a protector is appointed to a charitable trust under chapter 7 of the bill, how will their powers and duties interact with OSCR鈥檚 powers to regulate charitable trusts? Will you offer some explanation on those two specific points?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

Okay, thanks.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

The concern that we heard in evidence was about how to know that someone was incapable. People鈥檚 capacity can come and go, and the worry is that the decision might come down to four or five people sitting around a table who have no medical training but are concerned that an individual might not have capacity. You are asking people who have no medical knowledge or perhaps no legal background鈥攕maller trusts might have to take legal advice鈥攖o take on a large responsibility, and concern was expressed about putting a lot of pressure on volunteers to make medical decisions.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Jeremy Balfour

Okay. Thank you for that.